By Andra Greene, Niki Mendoza, and Michelle Yoshida of Phillips ADR Enterprises, P.C. (“PADRE”), with observations by PADRE’s founder and CEO, Layn R. Phillips, former U.S. District Judge.*

PADRE is a boutique ADR firm that is unique within the landscape of ADR firms. While PADRE welcomes all types of disputes, its roster of cases includes some of the most complex and highest stakes matters.

Many parties come to PADRE because of the firm’s founder, Layn R. Phillips, a former U.S. Attorney and District Judge, and his reputation and track record of successfully mediating complex, hotly contested, and high-stakes disputes. The PADRE team consists of not only Judge Phillips, but also other highly qualified neutrals, who are retired judges or experienced practitioners from both the plaintiff and defense side of the “v”. Judge Phillips carefully trains each one. Our team has a wealth of experience in a myriad of substantive areas. The PADRE roster includes many diverse neutrals. Diversity, equity, and inclusion (DEI) have been important firm values since PADRE opened its doors. Judge Phillips has long recognized the value of bringing diverse points of view together to arrive at creative solutions.

The ADR field still lags behind when it comes to diversity. While data on how often diverse neutrals are selected is sparse due to the privacy and confidentiality of mediations and arbitrations, the available evidence shows that most neutrals on ADR rosters today are still white men.

That is especially true in the space where PADRE often practices – complex, high-stakes disputes. There are fewer diverse mediators chosen to handle the highest stakes matters than there are for other types of cases. While there is little research as to why, one reason seems to be that in these disputes, law firms and clients often rely upon legacy relationships in the selection of neutrals, leading to the same people being chosen repeatedly. Not surprisingly, in these matters, there is a perceived risk harbored by the stakeholders responsible for selecting neutrals, where the parties are “reluctant to roll the dice” and go with a “new” neutral they haven’t worked with before, which explains the reliance on established relationships.

This tends to limit the use of diverse neutrals, since the legal profession has historically suffered, and still does suffer, from a lack of diversity. If ADR is, as some say, “the least diverse corner of the profession,” use of diverse neutrals in complex or high-stakes ADR matters is the least diverse part of this corner.

At PADRE, we are working to change that landscape. Our firm has long recognized the value of having diverse mediators, and our roster of neutrals reflects that. From its inception in 2014, PADRE has recognized diversity’s positive impact on outcomes, with Judge Phillips hiring and training a diverse bench of highly qualified women mediators. All have benefitted from learning directly from his approach to high-stakes ADR matters, co-mediating with him, and consulting with him, if necessary, when mediating independently. Our firm understands that, especially in these complex and highest-stakes cases, it is imperative to get a good cross-section of thinking, and to obtain a wide range of views.

There have been countless articles written in the past two decades by a variety of sources – ADR firms, industry associations, academic scholars, researchers, and practitioners – on why diverse mediation teams are more likely to attain better outcomes, citing a litany of arguments:

• Having a more diverse team of mediators allows a broader range of perspectives and approaches to be brought to bear on the mediation process, which can lead to mediators who are more innovative and demonstrate superior problem-solving skills.
• This is essential in ADR where creative thinking and novel outside-the-box solutions are crucial to achieving higher success rates and client satisfaction in accelerated time frames. Diversity also helps create an environment that welcomes and includes all parties, regardless of their gender, ethnicity, orientation, or other status.
• Creating an inclusive environment is critical to successful mediation, since some parties enter mediation from a place of fear and doubt, feeling a lack of support and understanding. Having mediators who are representative offers a safe environment where parties feel heard and understood.

Judge Phillips agrees with these concepts and has put them into practice at PADRE. He explains,

“We have a diverse team of mediators because we believe that principles of diversity, equity and inclusion can lead to better outcomes for the parties, including in the most complex, highest stakes matters. In fact, we employ these principles in our approach to all mediations. Our motto is ‘a relentless approach to resolution’.”

Indeed, a factor that differentiates PADRE is how much more in depth and thorough our mediation teams prepare for a mediation. PADRE has developed its own way of approaching matters derived from the need to take on and settle complex or high-stakes cases, a process infused with diversity best-practice at virtually all stages, e.g.:

• Encouraging parties to involve a variety of differing perspectives, interests, and experiences in the mediation process.
• Including mediators who have backgrounds, experiences, and specialty areas that enable the mediators to connect with counsel and parties and other participants and understand and relate to their concerns, expectations, and goals.

Of course, not all PADRE mediations are bet-the-company cases. But we recognize that to the parties, every mediation is high stakes. Our view is that it shouldn’t matter what the substance of the case is; it remains beneficial to tap multiple viewpoints that can lead to innovative positive outcomes. Infusing DEI principles in approaching all types of mediations can and does lead to better results.

*For their bios see: Our Team